Neutral Citation Number: [2015] EWHC 1173 (Admin)
Case No: CO/4594/2014
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 01/05/2015
Before:
MR JUSTICE HOLGATE
--------------------Between:
WOODCOCK HOLDINGS LIMITED
- and SECRETARY OF STATE FOR COMMUNITIES
AND LOCAL GOVERNMENT
MID-SUSSEX DISTRICT COUNCIL
Claimant
First
Defendant
Second
Defendant
----------------------------------------Christopher Boyle Q.C. (instructed by Russell-Cooke LLP) for the Claimant
Richard Honey (instructed by The Treasury Solicitor) for the Defendant
Hearing dates: 25th and 26th February
---------------------
Approved Judgment
1
Woodcock v SSCLG
Judgment Approved by the court for handing down.
Mr. Justice Holgate:
Introduction
1.
The Claimant, Woodcock Holdings Limited, challenges under section 288 of the
Town and Country Planning Act 1990 (“TCPA 1990”) the decision of the First
Defendant, the Secretary of State for Communities and Local Government, dated 4
September 2014 to dismiss its appeal against the refusal by the Second Defendant,
Mid-Sussex District Council (“the Council”), of outline planning permission for 120
dwellings, community facility/office space, care home and retail units, at Kingsland
Laines, Reeds Lane/London Road, Sayers Common, West Sussex.
2.
The Claimant’s appeal was heard by an Inspector at a planning inquiry between 8 and
11 October 2013. Originally, the Inspector was going to determine the matter.
However, by a letter to the parties from the Planning Inspectorate (“PINS”) dated 1
November 2013, the Secretary of State directed that he would decide the appeal
himself because it “involves proposals which raised important or novel issues of
development control, and/or legal difficulties”. The letter did not explain what those
issues or legal difficulties might be.
3.
The Inspector produced a report to the Secretary of State dated 6 January 2014 in
which she firmly recommended that the appeal be allowed and planning permission
granted subject to conditions. However, although in his decision letter1 the Secretary
of State agreed with the Inspector’s assessment of the merits of the proposal, he
dismissed the appeal because the proposal conflicted with, and was premature in
relation to, the emerging Hurstpierpoint and Sayers Common 2031 Neighbourhood
Plan (“the Neighbourhood Plan”) prepared by Hurstpierpoint and Sayers Common
Parish Council (“the Parish Council”).
4.
The appeal site comprises 5.85 hectares of land on the north-western edge of Sayers
Common. The southern part of the site contains a large detached house, Kingston
Laines and its associated gardens and outbuildings, including stables. The remainder
of the site comprises open fields used as paddocks and pasture (IR 2.2). The south
western corner of the site abuts existing properties and a recreation ground. To the
east, the site abuts residential properties and their gardens. To the west lies a wet
woodland area and to the north open land rising in shallow terraces towards a former
priory, now occupied by a “specialist education centre” (IR 2.3).
The issues at the public inquiry into the appeal
5.
The Council refused the application on five grounds covering (1) the effect of the
scheme on the setting of a Grade II listed building (a pair of semi-detached cottages
known as Aymers and Sayers), (2) surface water drainage and flooding, (3) the
sustainability of the location, (4) the impact of the proposal on highways and (5) the
effect of the proposal upon local infrastructure, services and facilities.
I will follow the convention of using the prefixes IR and DL to refer to paragraphs in the Inspector’s
report and the Defendant’s decision letter respectively.
1
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Judgment Approved by the court for handing down.
6.
By the time the inquiry opened, the Council had withdrawn reasons for refusal (3) to
(5), including the objection to the sustainability of the location for housing (IR 1.5).
The highway objection had been overcome as a result of additional survey work. The
contributions from the development contained in a section 106 agreement removed
the Council’s concerns over the sustainability of the location and effects upon local
infrastructure and services (footnote 5 at IR 1.5). That agreement secured the
contributions sought by the Council and West Sussex County Council in relation to
matters such as education facilities, libraries, children’s play space, formal and
informal sports facilities and community buildings. The contribution towards
community buildings was to be used towards extending and improving the village hall
or replacement facilities. The section 106 agreement also required 30% of the
residential units to be provided as affordable housing according to a mix of tenure
agreed with the Council (IR 11.9 to 11.13). The Inspector concluded that the
contributions and obligations secured by the agreement complied with Regulation 122
of the Community Infrastructure Levy Regulations 2010 (SI 2010 No. 948) (IR
11.16). The Defendant accepted that conclusion (DL 18).
7.
Accordingly, at the start of the inquiry the Council was relying upon only the first two
of its reasons for refusal, the listed building and drainage/flooding issues. It was
represented by Counsel and called two experts on these subjects. However, following
cross-examination, the Council confirmed that it was no longer pursuing its
opposition in relation to either matter and no longer opposed the grant of planning
permission (IR 1.5).
8.
Consequently, opposition to the scheme at the inquiry was led by the Parish Council,
supported by a number of local residents. The Parish Council’s case was set out in
section 7 of the Inspector’s report. In summary, its main objections concerned effect
upon the setting of the listed building, the non-sustainability of the location owing to
the inadequate range of services in the village and nearby, and adverse effect upon the
character of the settlement. The Parish Council also relied upon its draft
Neighbourhood Plan (IR 4.13, 8.27 and 9.1).
9.
The Inspector’s summary of the Statement of Common Ground agreed between the
Claimant and the District Council (IR 5.1) included the following important points
which supported the appeal:
(i)
The Council is unable to demonstrate a five year supply of housing land, the
agreed supply lying between 1.82 and 2.35 years;
(ii)
There is a demonstrable housing need within the Parish;
(iii)
The site can be drained satisfactorily and will not be at risk of flooding or
increase the risk of flooding elsewhere;
(iv)
“The site is in a sustainable location for housing, with good access to a range
of local facilities and services”. The section 106 agreement had addressed the
Council’s concern;
(v)
“Although the development would encroach into countryside on the edge of
the village, the site is well contained and there would be no unacceptable
landscape or visual impacts”;
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(vi)
“The proposed residential density of 25 dwellings per hectare is appropriate,
given the surrounding pattern of development”;
(vii)
“Taking account of the proposed community and retail facilities proposed, the
level of development is appropriate in the context of the village of Sayers
Common”;
(viii) Subject to the planning obligation, the appeal scheme would deliver all
necessary infrastructure.
10.
In paragraph 4.15 of the Statement of Common Ground it was also agreed that:“It is common ground that only limited weight can be attributed to [the draft
Neighbourhood Plan], as it has not been examined or subject to referendum
(likely to be Autumn 2013), and it maybe subject to considerable change.
Consequently, at this time the appeal proposal must be assessed against the
Development Plan and relevant material planning considerations, including the
Council’s lack of a five year housing land supply of deliverable housing sites.”
In IR 12.46 the Inspector concluded that, applying the principles in paragraph 216 of
the National Planning Policy Framework, “relatively limited weight can be given to
the [draft Neighbourhood Plan], since its adoption process still has quite a way to go,
and it could be that its policies change along the way” (see also IR 4.13 to like effect).
The procedure followed between the inquiry and the decision letter
11.
In view of the Council’s withdrawal of its objections to the proposal and its
substantial agreement with the merits of the scheme, the Defendant’s letter of 1
November 2013 recovering the determination of the appeal from the Inspector, came
as a surprise to the Claimant. The planning consultant acting for the Claimant, Mr.
Tim Rodway, sent an email to PINS asking why the Defendant had recovered the
appeal for his own determination.
12.
The reply from PINS dated 19 November 2013 merely stated that “the important and
novel issue of development control is the interaction of the appeal with the emerging
neighbourhood plan for Hurstpierpoint which is at a relatively advanced stage.” On
22 November 2013 PINS announced that the Defendant would issue his decision
letter by 8 April 2014.
13.
On 22 November 2013 Mr. Rodway sent a further email stating that the proposal had
not been refused on prematurity grounds and the main parties to the appeal had agreed
that the principle of housing on the appeal site was acceptable, taking into account the
lack of a 5 year housing land supply within Mid-Sussex District. He added that
because the two site-specific objections had been resolved, the Council was no longer
resisting the appeal.
14.
On 6 March 2014 the Secretary of State published for the first time national Planning
Practice Guidance (“PPG”) to supplement the National Planning Policy Framework
(“NPPF”) which had been published on 27 March 2012. The PPG gave guidance on
the subject of prematurity in relation to emerging development plans, including
neighbourhood plans
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15.
It appears that in a letter to the parties dated 20 January 2014 (which is not before the
Court) the Secretary of State announced that he would not determine the Claimant’s
appeal yet because he had decided to consider it alongside two other matters, a
recovered appeal at Little Park Farm and Highfield Drive, Hurstpierpoint and a
called-in planning application at College Lane, Hurstpierpoint. On 17 March 2014
the Secretary of State gave the Appellant, the Council, and the Parish Council an
opportunity to make written representations on the effect of the new PPG on the
Claimant’s appeal.
16.
Between 27 March and 7 April 2014 there followed an exchange of written
representations by planning consultants acting on behalf of the Claimant and the
Parish Council.
17.
Eventually on 4 September 2014 the Secretary of State’s issued his decision on the
Claimant’s appeal together with his decisions on the two other matters he had
considered in tandem. All three cases were the subject of reports from the same
Inspector and decision letters prepared by the same officer. The Secretary of State
accepted the Inspector’s recommendation to reject the proposal for 81 houses on the
site at College Lane, Hurstpierpoint, not only because of unacceptable impact on a
Local Gap designated in the Mid Sussex Local Plan and consequent lack of
sustainability (DL 21), but also prematurity in relation to the draft Neighbourhood
Plan. On the proposal for 157 houses at Little Park Farm and Highfield Drive,
Hurstpierpoint, the Defendant decided to grant permission, relying upon the allocation
of those sites in the draft Neighbourhood Plan and also stating that the development
was sustainable (DL 18, 21 and 23).
Planning Policies
National Planning Policy Framework
18.
In order to “boost significantly the supply of housing” local planning authorities are
required by paragraph 47 of the NPPF to “identify and update annually a supply of
specific deliverable sites sufficient to provide five years worth of housing against their
housing requirements with an additional buffer of 5%....to ensure choice and
competition in the market for land.”
19.
Paragraph 49 provides:“Housing applications should be considered in the context of
the presumption in favour of sustainable development.
Relevant policies for the supply of housing should not be
considered up-to-date if the local planning authority cannot
demonstrate a five-year supply of deliverable housing sites.”
20.
The presumption in favour of sustainable development is contained in paragraph 14:“At the heart of the National Planning Policy Framework is a
presumption in favour of sustainable development, which
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should be seen as a golden thread running through both planmaking and decision-taking.
For plan-making this means that:
● local
planning authorities should positively seek opportunities
to meet the development needs of their area;
Local Plans should meet objectively assessed needs, with
sufficient flexibility to adapt to rapid change, unless:
●
any adverse impacts of doing so would significantly and
demonstrably outweigh the benefits, when assessed against the
policies in this
––
Framework taken as a whole; or
specific policies in this Framework indicate development
should be restricted.
––
For decision-taking this means:
approving development proposals that accord with the
development plan without delay; and
●
where the development plan is absent, silent or relevant
policies are out of date, granting permission unless:
●
any adverse impacts of doing so would significantly and
demonstrably outweigh the benefits, when assessed against the
policies in this Framework taken as a whole; or
–
–
specific policies in this Framework indicate development
should be restricted.”
21.
So where a local planning authority cannot demonstrate a five year supply of housing
land, policies “for the supply of housing” are treated as being out of date, so that the
presumption in favour of sustainable development in paragraph 14 is engaged. Mr.
Honey for the Secretary of State accepted that the trigger in paragraph 49 applies just
as much to “housing supply policies” in a neighbourhood plan which has been
“made” (i.e. formally adopted) as to other types of statutory development plan. In my
judgment that must be correct.
22.
In this context paragraph 12 of the NPPF should be noted:“This National Planning Policy Framework does not change the
statutory status of the development plan as the starting point for
decision making. Proposed development that accords with an
up-to-date Local Plan should be approved, and proposed
development that conflicts should be refused unless other
material considerations indicate otherwise.
It is highly
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desirable that local planning authorities should have an up-todate plan in place.”
23.
Paragraph 17 of the NPPF sets out twelve “core land-use planning principles”, the
first of which requires that planning should:“be genuinely plan-led, empowering local people to shape their
surroundings, with succinct local and neighbourhood plans
setting out a positive vision for the future of the area. Plans
should be kept up-to-date, and be based on joint working and
co-operation to address larger than local issues. They should
provide a practical framework within which decisions on
planning applications can be made with a high degree of
predictability and efficiency”
The third core principle requires planning to:“proactively drive and support sustainable economic
development to deliver the homes, business and industrial units,
infrastructure and thriving local places that the country needs.
Every effort should be made objectively to identify and then
meet the housing, business and other development needs of an
area, and respond positively to wider opportunities for growth.
Plans should take account of market signals, such as land prices
and housing affordability, and set out a clear strategy for
allocating sufficient land which is suitable for development in
their area, taking account of the needs of the residential and
business communities”
24.
Mr. Honey emphasised those parts of the NPPF which attach importance to
neighbourhood plans and planning (e.g. paragraphs 183 to 185). Paragraph 198
provides that “where a planning application conflicts with a neighbourhood plan that
has been brought into force, planning permission should not normally be granted”.
However, the Secretary of State accepts through Mr. Honey, that paragraph 198
neither (a) gives enhanced status to neighbourhood plans as compared with other
statutory development plans, nor (b) modifies the application of section 38(6) of the
Planning and Compulsory Purchase Act 2004 (“the 2004 Act”). Moreover, housing
supply policies in neighbourhood plans are not exempted from the effect of paragraph
49 and the presumption in paragraph 14 of the NPPF (see paragraph 21 above).
25.
Paragraph 216 of the NPPF deals with the weight which may be given to an emerging
plan:“From the day of publication, decision-takers may also give
weight to relevant policies in emerging plans according to:
the stage of preparation of the emerging plan (the more
advanced the preparation, the greater the weight that may be
given);
●
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● the
extent to which there are unresolved objections to relevant
policies (the less significant the unresolved objections, the
greater the weight that may be given); and
the degree of consistency of the relevant policies in the
emerging plan to the policies in this Framework (the closer the
policies in the emerging plan to the policies in the Framework,
the greater the weight that may be given).”
●
Planning Practice Guidance
26.
The PPG contains guidance on the circumstances in which it may be justifiable to
refuse planning permission on the grounds of prematurity:“Annex 1 of the National Planning Policy Framework explains
how weight may be given to policies in emerging plans.
However in the context of the Framework and in particular the
presumption in favour of sustainable development – arguments
that an application is premature are unlikely to justify a refusal
of planning permission other than where it is clear that the
adverse impacts of granting permission would significantly and
demonstrably outweigh the benefits, taking the policies in the
Framework and any other material considerations into account.
Such circumstances are likely, but not exclusively, to be limited
to situations where both:
a) the development proposed is so substantial, or its cumulative
effect would be so significant, that to grant permission would
undermine the plan-making process by predetermining
decisions about the scale, location or phasing of new
development that are central to an emerging Local Plan or
Neighbourhood Planning; and
b) the emerging plan is at an advanced stage but is not yet
formally part of the development plan for the area.
Refusal of planning permission on grounds of prematurity will
seldom be justified where a draft Local Plan has yet to be
submitted for examination, or in the case of a Neighbourhood
Plan, before the end of the local planning authority publicity
period. Where planning permission is refused on grounds of
prematurity, the local planning authority will need to indicate
clearly how the grant of permission for the development
concerned would prejudice the outcome of the plan-making
process.”
27.
The PPG addresses the question “Can a Neighbourhood Plan come forward before an
up-to-date Local Plan is in place?” as follows:“Neighbourhood plans, when brought into force, become part
of the development plan for the neighbourhood area. They can
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be developed before or at the same time as the local planning
authority is producing its Local Plan.
A draft neighbourhood plan or Order must be in general
conformity with the strategic policies of the development plan
in force if it is to meet the basic condition. A draft
Neighbourhood Plan or Order is not tested against the policies
in an emerging Local Plan although the reasoning and evidence
informing the Local Plan process may be relevant to the
consideration of the basic conditions against which a
neighbourhood plan is tested.
Where a neighbourhood plan is brought forward before an upto-date Local Plan is in place the qualifying body and the local
planning authority should discuss and aim to agree the
relationship between policies in:

the emerging neighbourhood plan

the emerging Local Plan

the adopted development plan
with appropriate regard to national policy and guidance.”
28.
The PPG also addresses the question “What weight can be given to an emerging
neighbourhood plan when determining planning applications”:“Planning applications are decided in accordance with the
development plan, unless material considerations indicate
otherwise. An emerging neighbourhood plan may be a material
consideration. Paragraph 216 of the National Planning Policy
Framework sets out the weight that may be given to relevant
policies in emerging plans in decision taking. Factors to
consider include the stage of preparation of the plan and the
extent to which there are unresolved objections to relevant
policies. Whilst a referendum ensures that the community has
the final say on whether the neighbourhood plan comes into
force, decision makers should respect evidence of local support
prior to the referendum when seeking to apply weight to an
emerging neighbourhood plan. The consultation statement
submitted with the draft neighbourhood plan should reveal the
quality and effectiveness of the consultation that has informed
the plan proposals. And all representations on the proposals
should have been submitted to the local planning authority by
the close of the local planning authority’s publicity period. It is
for the decision maker in each case to determine what is a
material consideration and what weight to give to it.”
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Ministerial Statement on Neighbourhood Planning published on 10 July 2014
29.
DL 7 mentioned the Ministerial Statement on Neighbourhood Planning. Having
referred to the Government’s “clear policy intention when introducing neighbourhood
planning….to provide a powerful set of tools for local people to ensure that they get
the right types of development for their community”, the Statement explained that the
Secretary of State “is therefore keen to give particular scrutiny to planning appeals in,
or close to, neighbourhood plan areas to enable him to consider the extent to which
the Government’s intentions are being achieved on the ground”. To that end, the
Statement amended the Secretary of State’s criteria for considering the recovery of
decisions on planning appeals, so as to include proposals for more than 10 dwellings
in areas where a neighbourhood plan has either been submitted to the local planning
authority or “made” (i.e. formally approved).
30.
Mr. Honey did not suggest that the Ministerial Statement should be treated as
representing a change in policy. It does not purport to alter the NPPF. Indeed, it
reflects the language of the NPPF (e.g. paragraph 184). Plainly, the Statement merely
sets out the policy background as part of the explanation for making a procedural
change, namely to the criteria for recovery of decisions.
Mid-Sussex Local Plan
31.
At the time of both the inquiry and the decision letter the statutory development plan
comprised the “saved policies” of the Mid-Sussex Local Plan adopted in May 2004.
The plan covered a period ending in 2006. The appeal site was located within a
“Countryside Area of Development Restraint” to which policy C1 applied. The
policy resists new development, subject to certain exceptions, in order to protect the
countryside for its own sake. However, given the significant shortfall in the five year
land supply, the Inspector concluded that policies for the supply of housing land in the
local plan, including policy C1, had to be treated as out of date (IR 12.2). The
Secretary of State agreed with that conclusion (DL8).
32.
A policy which has the effect of restricting development in the countryside, including
housing development, is a “housing supply policy” to which paragraph 49 of the
NPPF may apply (see e.g. Cotswold D.C. v Secretary of State [2013] EWHC 3719
(Admin) para 72; South Northamptonshire Council v Secretary of State [2014]
EWHC 573 (Admin) para 47; Hopkins Homes Ltd v Secretary of State [2015] EWHC
132 (Admin) para 38). As Ouseley J held in the South Northamptonshire case,
policies which restrain development in certain areas are the “obvious counterparts” to
policies designed to provide for an appropriate distribution and location of
development elsewhere within the plan area.
Draft Mid-Sussex District Plan
33.
On 24 July 2013 the Council submitted the Draft Mid-Sussex District (running up to
2031) for examination by an Inspector appointed by the Secretary of State. However,
on 2 December 2013 the examining Inspector issued a letter criticising the evidence
base for the draft plan and recommended the plan’s withdrawal because it was likely
to be found “unsound”. The Council formally withdrew the plan on 27 May 2014.
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Hurstpierpoint and Sayers Common 2031 Neighbourhood Plan
34.
At the time of the inquiry into the Claimant’s appeal, a draft of the Neighbourhood
Plan had been published by the Council for consultation ending on 20 May 2013.
Subsequently, in March 2014 the “submission” version of the plan was submitted to
the local planning authorities for “examination” and further public consultation took
place in April. The Examiner did not consider it necessary to hold a hearing into the
draft plan. His report was issued on 23 September 2014 and therefore could not be
taken into account by the Secretary of State in his decision letter of 4 September 2014.
The District Council accepted the Examiner’s recommendations and a statutory
referendum was held on 12 February 2015. As a result the District Council formally
“made” the Neighbourhood Plan, at which point it became part of the statutory
development plan. Thus, the outcome of the examination process was unknown when
the decision on the appeal was made.
35.
A copy of the submission draft of the neighbourhood plan was provided to the
Secretary of State during the representations made in the spring of 2014. The plan’s
“vision statement” and objectives placed emphasis upon “keeping the village feel and
sense of place” (page 4). Basing themselves upon a study undertaken by the District
Council in October 2011, the Parish Council’s plan estimated that within the parish
between 140 and 395 new houses would need to be built, and opted for a target “in the
higher end of this range” (page 12).
36.
Paragraph 5.3 of the submission draft plan (2014) referred to an appraisal of 25
housing sites carried out for the Parish Council. As a result, policy H3 of the plan
proposed four specific sites in Hurstpierpoint for 252 houses in total. The 2014 draft
acknowledged that planning permission had already been granted for 95 houses on
two of those sites at Chalkers Lane, even though the 2013 draft of the neighbourhood
plan had proposed only 65 houses on those sites. The draft allocations for
Hurstpierpoint also included 17 houses at Highfield Drive and 140 houses at Little
Park (see paragraph 17 above). Neither when the Secretary of State granted
permission on 4 September 2014 for the Highfield Drive/Little Park sites, nor when
the Chalkers Lane sites were permitted, does it appear that prematurity in relation to
the neighbourhood plan process was of any concern. By the time the Examiner came
to issue his report to the District Council on 23 September 2014, the “draft”
allocations for 252 dwellings in Hurstpierpoint were all a fait accompli because they
had all been granted planning permission. In particular, the Defendant granted
permission for 157 dwellings, or about 62% of the Hurstpierpoint total, in a decision
issued on the same day as his dismissal of refuse the Claimant’s appeal for 120 units
at Sayers Common on the grounds of prematurity, notwithstanding that there had been
objections to the allocation of the Hurstfieldpoint sites (see paragraph 45(ii) below).
37.
For Sayers Common paragraph 5.3 of the 2014 draft plan stated “no sites identified
but allow for 30 to 40” (this was also reflected in draft policy H 4).
38.
Accordingly, the 2014 draft plan provided a total of between 282 and 292 houses for
the parish during the period to 2031. As Mr. Boyle QC for the Claimant pointed out,
if 120 houses were to be provided in Sayers Common, rather than 30 or 40, the total
number of new dwellings within the parish would amount to 372, still below the
upper estimate in the draft plan that up to 395 new dwellings would be needed for the
parish.
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39.
Policy H1 sets out criteria for the location of housing development in Hurstpierpoint.
Policy H2 did likewise for Sayers Common by providing that new housing
development “will be permitted in areas which: (a) positively enhance the existing
settlement pattern of the village and (b) can enhance the flood and drainage
management in the village”. Policy 3 allocated housing sites in Hurstfieldpoint.
40.
Policy H4 of the submission draft of the neighbourhood plan dealt with housing
provision in Sayers Common as follows:“New housing at Sayers Common will be permitted once the
existing drainage infrastructure issues have been resolved to
remove the incidence of localised flooding. Within the Plan
period the village will accommodate 30 to 40 new homes. A
review and appraisal of deliverable housing sites will be
undertaken at an early stage in the Plan period.”
Thus, the 2014 draft of the Neighbourhood Plan recognised that the policy for Sayers
Common would need to be reviewed in the relatively near future even if the plan were
to be formally approved.
41.
Mr. Honey drew attention to pages 13 - 14 and paragraphs 5.2 and 5.4 of the draft
submission version of the neighbourhood plan explaining the rationale for the Parish
Council’s approach to the scale and distribution of housing in the parish. In
particular, it was stated that any new development in Sayers Common would have to
take into account constraints affecting local services, such as schools, shops,
healthcare and transport connections. Development in the village was also said to be
constrained by the inadequate capacity of the wastewater and surface water drainage
system and the need for highway improvements.
42.
Virtually all of the land outside the current built up area of Sayers Common lies
within areas to which either policy C1 or C3 of the draft neighbourhood plan applies.
Policy C3 protects defined local gaps. The Claimant’s site was subject not to Policy
C3 but to Policy C1 which provides:“Development, including formal sports and recreation areas,
will be permitted in the countryside, defined as the areas
outside the built-up boundaries on the Policies Maps, where:
43.

It is necessary for the purposes of agriculture, or some
other use which has to be located in the countryside;

It maintains or where possible enhances the quality of
the rural and landscape character of the Parish area;

It is supported by a specific policy reference elsewhere
in this Plan.”
Mr. Honey accepted that if paragraph 49 of the NPPF is interpreted as applying to
draft as well as adopted development plans, policy C1 of the neighbourhood plan
should have been treated in the decision as a “housing supply policy”, along with
policies H1 to H4.
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44.
The scale and distribution of housing in the draft neighbourhood plan was the subject
of objections, which were summarised in the “Consultation Statement” on the 2013
draft of the neighbourhood plan. The Parish Council sent that document to the
Secretary of State as part of its post-inquiry representations. The 2013 draft plan had
proposed a distribution of housing within the parish broadly similar to that contained
in the 2014 draft. Policy H1 set a housing target of 230 to 255 new homes for the
parish overall, with most of the allocations being proposed at Hurstpierpoint and only
30 to 40 dwellings at Sayers Common without identifying any allocations (policy
H7).
45.
In summary, the objections to the draft neighbourhood plan included the following
points:(i)
The Claimant contended that the housing figure for the parish should be
“revised upwards sharply to ensure that it covers a 20 year period”. It
explained why constraints to development in Sayers Common would be
resolved by the Claimant’s appeal proposal and therefore did not justify the
proposed cap on development. There was an identified housing need within
the parish (at the time of the appeal 45 households on the District Council’s
housing register with connections to Sayers Common and 214 households for
Hurstpierpoint). Sayers Common could accept up to 120 houses;
(ii)
Thakeham Homes contended that the neighbourhood plan should not be based
upon the figures produced by the District Council to which there was a large
level of objection. The future housing need figures in the neighbourhood plan
were flawed and did not take account of projected household growth. A study
produced by consultants indicated a minimum requirement of 700 dwellings
for the parish. Objections were made to the proposed allocations at
Hurstpierpoint, namely Chalkers Lane, Highfield Drive and Little Park;
(iii)
Rydon Homes submitted that the plan’s proposed allocation of new housing
should be considered a minimum figure and there should be flexibility to
accommodate extensions shown to be sustainable.
46.
In relation to Sayers Common, the Parish Council responded in paragraph 8.58 of the
Consultation Statement that policy H4 of the submission draft of the neighbourhood
plan reflected the same housing numbers as in policy H7 of the 2013 draft, but sites
had not been identified owing “to infrastructure issues in the village, notably drainage
and surface water flooding”. Paragraph 8.59 referred to the need to address
“sustainability issues for the village”.
47.
In response to the Secretary of State’s invitation of 17 March 2014, the Claimant and
the Parish Council made representations on the draft neighbourhood plan and the
weight to be attached to it in the light of the PPG. In its representations the Claimant
submitted (in summary):(i)
When determining the weight to be given to the neighbourhood plan it was
relevant for the Secretary of State to consider not only the stage reached by the
plan but also the extent to which there were unresolved objections and conflict
with policies of the NPPF. Accordingly, the Claimant contended that no
weight should be given to the draft plans;
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Judgment Approved by the court for handing down.
48.
49.
(ii)
In the absence of an up-to-date strategic housing policy for the District
Council’s area, “the neighbourhood plan has no adopted housing policy to
conform with”. The Claimant relied upon the recommendation of the
Examiner into another neighbourhood plan within Mid-Sussex (Slaugham),
namely that in the absence of strategic housing policies it would be useful for
the parish to make an “objective assessment” of their housing needs.
Hurstpierpoint and Sayers Common Parish Council had not made any such
assessment;
(iii)
The proposal in policy H4 of the neighbourhood plan to provide a maximum
of only 30 to 40 new homes in Sayers Common conflicted with the
“flexibility” required by the NPPF, especially in the absence of an objective
assessment of housing needs (relying upon the Examiner’s Report on the
Slaugham plan);
(iv)
In the absence of strategic housing numbers or an objective assessment of
housing need for the parish, the draft plan should not determine the number of
new homes for the parish overall and new housing in Sayers Common should
not be capped at 30 – 40 dwellings (following the approach taken on the
Ascot, Sunninghill and Sunningdale Neighbourhood Plan);
(v)
The Claimant’s objections to the neighbourhood plan had explained that the
appeal proposal would overcome the infrastructure constraints for Sayers
Common and that there was no justification for the cap.
In its representations to the Secretary of State the Parish Council submitted (in
summary):(i)
The draft neighbourhood plan should carry “significant weight” “having
regard to the advanced progress of the Neighbourhood Plan”.
The
Consultation Statement showed there to be general support for the plan and
“very few areas of objection”;
(ii)
The proposal to provide 282-292 new homes within the parish between 2011
to 2031 represented a significant contribution to sustainable development, both
in real terms and relative to the size of the parish;
(iii)
Delivery would best be achieved by the identification of sites primarily in and
around Hurstpierpoint and “a non-site specific allocation of some 30 – 40
dwellings in Sayers Common”. This would strike the appropriate balance for
sustainable development;
(iv)
The appeal proposal conflicted with policies C1, H1 and H4 of the draft
neighbourhood plan because it proposed substantially more than the 30 or 40
dwellings laid down in the draft plan for Sayers Common in order to protect
the environmental character and feel of the village. This conflict significantly
weighed against the proposal.
It is apparent from paragraphs 47 and 48 above that there was a head-on conflict
between the Parish Council and the Claimant (and other developers) as to the
approach which the plan should take to the distribution of development at
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Hurstpierpoint and in particular at Sayers Common. As to the latter, there was an
issue as to whether the proposed allocation of 30 – 40 dwellings should be regarded as
a cap, which if substantially exceeded would result in harm to the character of the
village. It is therefore plain that the significance of the outstanding objections to the
draft plan was a substantial issue before the Secretary of State in the appeal.
Inspector’s Report and the decision letter on the planning appeal
50.
The Inspector’s conclusions may be summarised as follows:(i)
The main consideration in the appeal was whether the proposal constituted
sustainable development for the purposes of the NPPF (IR 12.3);
(ii)
The appeal site is for the most part visually enclosed (IR 12.4). The effect on
the landscape character would be moderate/minor, which would be acceptable
in planning terms (IR 12.5);
(iii)
The proposed density of 25 dwellings per hectare is appropriate, given the
surrounding pattern of development. The care/nursing home and community
hall buildings, although larger structures, need not undermine the established
character and appearance of the area, subject to control of the detailed design
(IR 12.6);
(iv)
Any impact on character and appearance of the area in general would be more
than compensated for by the proposed new planting (IR 12.7);
(v)
The proposed development would not undermine the significance of the listed
building (IR 12.16). The proposal would not affect any historic component of
the setting of the listed building. Any harm to the listed building would be less
than substantial (IR 12.18);
(vi)
The proposed land drainage system would be effective to overcome flooding
and drainage problems at the site and would be likely to help address flooding
problems experienced on adjoining sites (IR 12.25);
(vii)
The proposed access arrangements and effects on highway safety would be
acceptable (IR 12.27 to 12.29);
(viii) Residents of Sayers Common have access to a reasonable range of services
and facilities. It would be appropriate to permit further development at the
village, there being a range of services and facilities to support an increased
population and also because the development would have the potential to help
maintain the viability of those services and facilities (IR 12.41). The District
Council’s Rural Issues Background Paper (2009) identified Sayers Common as
being suitable for 30 - 100 dwellings over the plan period, with the potential to
accommodate development closer to the higher figure. The 2009 Paper also
stated that future development could generate sufficient demand for a local
shop to become viable and thus to create a more distinct centre allowing the
village to become more self-sufficient (IR 12.42).
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(ix)
The locational characteristics of the site are acceptable as regards accessibility
to local services and facilities. The site would contribute economic growth in
the area by providing much needed market and affordable housing against the
background of the shortfall in the five year land supply. The proposal accords
with the objectives in the NPPF of securing economic growth and boosting the
supply of housing (IR13.1). The scheme would not have a significant adverse
effect on the character and appearance of the area and could be adequately
drained, without increasing flood risk elsewhere (IR 13.2). The less than
substantial harm to the listed building is clearly outweighed by the timely
public benefit of providing much needed housing (IR 13.3).
(x)
As to paragraph 216 of the NPPF, only “relatively limited weight” could be
given to the draft neighbourhood plan, given that there was some way to go
before adoption and policies could change (IR 12.46);
(xi)
The scheme would represent a sustainable form of development in economic,
social and environment terms. There was a compelling case for releasing the
site for the proposed development (IR 13.4).
51.
In my judgment each of the matters of common ground between the Council and the
Claimant summarised in IR 5.1 and set out in paragraph 9 above, were obviously
important to the determination of the appeal. It follows that although the Secretary of
State was not obliged in his decision to follow all or any of those points, nevertheless
if he was going to disagree materially with any such matter, he would have been
obliged to say so and explain why he took a different view. But the Secretary of State
did not do that. Instead, in his decision letter the Secretary of State expressly endorsed
points (i) to (ix) from the Inspector’s Report summarised in paragraph 50 above (DL8
to DL13). In DL 8 to 13 and 19 the Secretary of State explicitly agreed with IR 12.2
to 12.42 and 13.2 to 13.3 (the reference in DL 10 to IR 13.2 must have been intended
to read IR 13.3 given the text which follows). It is clear from the references given
above and from the opening text of DL 19 that the Secretary of State agreed with the
thrust of IR 13.1
52.
Thus it is plain beyond argument that the Secretary of State agreed with the entirety of
the Inspector’s reasoning as to why the location for the development proposed is
sustainable in all relevant respects, and not merely in terms of accessibility (DL 9, 13,
18 and 19). The sole reason given for the Secretary of State’s disagreement with his
Inspector’s recommendation to grant planning permission was that the proposal
conflicted with the emerging neighbourhood plan and was premature in relation to
that plan. The whole of the Secretary of State’s reasoning on this aspect, including
his reaction, if any, to the representations responding to his letter to the parties dated
17 March 2014, is contained in DL 14 to 16 and DL 19, which read as follows:“14. The Secretary of State has given careful consideration to
the Inspector’s description of the relationship between the NP
and the appeal proposal at IR12.44-12.46, including policy H7
of the emerging NP which indicated that new housing at Sayers
Common will only be permitted once the existing drainage
infrastructure issues have been resolved and that the village
might accommodate 30-40 new homes (IR12.44).
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15. The Secretary of State has also taken account of the fact
that, since the Inspector wrote her Report, substantial progress
has been made in respect of the emerging NP, which has now
been submitted to the Council for examination. Therefore,
although the NP has yet to complete its assessment by an
independent examiner and, if approved, be put to public
referendum, the terms of the Framework and the guidance
mean that it can now be given more weight than when the
Inspector was considering it (IR 12.46)
16. Although the Inspector goes on to point out that the NP
will need to be in conformity with the development plan and
should not promote less development than is required to meet
the housing needs of the area, the Secretary of State considers it
appropriate (as stated in the Written Ministerial Statement of 10
July 2014 – referred to in paragraph 7 above) to give local
people an opportunity to ensure they get the right types of
development needs. The Secretary of State has therefore given
significant weight to the fact that the emerging NP has
identified housing allocations elsewhere within the NP area and
that the Council has yet to complete an up-to-date objectively
assessed housing needs analysis against which to measure the
overall NP proposals. In the light of these, he considers it
appropriate, as things currently stand, to tip the planning
balance in favour of the emerging NP proposals, while
accepting that these may need to be revisited in due course.
….
19. Overall, while the Secretary of State agrees with the
Inspector that the appeal site is acceptable in terms of its
locational characteristics and economic growth and, in
principle, in boosting significantly the supply of housing, he
also gives significant weight to the stage reached by the
emerging NP which does not identify the site for this purpose.
Therefore, while he appreciates that the remaining stages
through which the NP has to pass may show that more land
needs to be allocated, he considers that it would be
inappropriate to prejudge that at this stage.”
53.
Reading the decision letter as a whole, the Secretary of State’s reasoning was as
follows:(i)
Taking into account the section 106 obligation, the appeal proposed the
development of 120 houses in a sustainable location with good access to a
range of local facilities and services. The obligation would deliver all
necessary infrastructure and overcome any drainage issues;
(ii)
The proposed encroachment into the countryside was acceptable. Any impact
on the character and appearance of the area would be more than compensated
for by the proposed new planting;
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(iii)
The proposed development density of 25 dwellings per hectare was
appropriate to the pattern of the existing surrounding development. The level
of development proposed was appropriate in the context of Sayers Common;
(iv)
The proposal accorded with two principal thrusts of the NPPF, boosting
significantly housing supply and securing economic growth;
(v)
But given the stage it had reached, significant weight should be given to the
draft neighbourhood plan and its identification of housing allocations
elsewhere within the parish and to the fact that “the [District] Council has yet
to complete an up-to-date objectively assessed housing needs analysis against
which to measure the overall [Neighbourhood Plan] proposals”. “In the light
of these, he considers it appropriate, as things currently stand, to tip the
planning balance in favour of the emerging [Neighbourhood Plan] proposals,
whilst accepting that these may need to be revisited in due course” (emphasis
added). Significant weight should be given to the fact that the plan did not
identify the appeal site for housing, whilst appreciating “that the remaining
stages through which the [Neighbourhood Plan] has to pass may show that
more land needs to be allocated”. That was a matter which should not be
prejudged in the determination of the appeal.
Relevant Legal Principles
Development Plans
54.
Section 70(2) of the 1990 Act provides that when dealing with a planning application
a planning authority must have regard to those provisions of the development plan
which are relevant to that application along with “any other material considerations”.
By section 38(6) of the 2004 Act such a “determination must be made in accordance
with the [development] plan unless material considerations indicate otherwise.”
55.
Section 38(3) of the 2004 Act provides that the “development plan” comprises “the
development plan documents (taken as a whole) which have been adopted or
approved in relation to that area” and “the neighbourhood development plans which
have been made in relation to that area”. The “development plan documents”
comprise the local planning authority’s “local development documents” setting out its
policies for the development and use of land in its area and specified as development
plan documents in its “local development scheme” (sections 15, 17 and 37(1) to (3)).
Neighbourhood Plans
56.
Sections 38A to 38C of the 2004 Act provide for the making and content of
neighbourhood plans. Sections 38A(3) and 38C(5) and Schedule 4B (of the 1990 Act
as modified) govern the process by which such plans are prepared and ultimately
brought into force. The Examiner must consider whether the “basic conditions” in
paragraph 8(2) of schedule 4B are met (paragraph 8(1)). In that regard he or she must
be satisfied (inter alia) that it is appropriate to make the plan “having regard to”
national policies, and that the plan contributes to the achievement of sustainable
development and is “in general conformity with the strategic policies” of the
development plan. Paragraph 8(6) of schedule 4B prevents the Examiner from
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considering any matters falling outside paragraph 8(1) (apart from compatibility with
Convention rights).
57.
Thus, in contrast to the Examination of a development plan document, the remit of an
Examiner dealing with a neighbourhood plan does not include the requirement to
consider whether that plan is “sound” (cf. section 20(5)(b) of the 2004 Act). So the
requirements of “soundness” contained in paragraph 182 of the NPPF do not apply to
a neighbourhood plan. Accordingly, there is no need to consider whether a
neighbourhood plan is based upon a strategy prepared to meet objectively assessed
development and infrastructure requirements, or whether it represents the most
appropriate strategy considered against reasonable alternatives and is based upon
proportionate evidence (see also paragraph 055 of the Planning Practice Guidance).
58.
The Planning Practice Guidance (in the version dated 6 March 2014) adds that a
neighbourhood plan “must not constrain the delivery of important national policy
objectives” (paragraph 069). Presumably that would include the twelve core
principles set out in paragraph 17 of the NPPF in so far as they are relevant to a
particular plan (see paragraph 23 above).
59.
The purpose and scope of the neighbourhood plan process was considered by
Supperstone J in BDW Trading Limited v Cheshire West and Cheshire Borough
Council [2014] EWHC 1470 (Admin). His judgment was handed down on 9 May
2014, well before the decision letter in the present case.
60.
In BDW the Claimant challenged the examination of a draft neighbourhood plan
which contained a policy limiting the size of new housing sites within or adjacent to a
particular settlement to 30 homes. The criticisms included a failure to consider
whether constraint policies in the draft plan were compatible with the NPPF (in
particular paragraph 47), a failure to address the absence of up-to-date strategic
housing policies in a local plan, and a failure to consider whether there was a proper
evidential basis to support the draft policy (see paragraphs 78 to 80 of the judgment).
The challenge failed.
61.
Supperstone J decided that the criticisms failed to appreciate the limited role of the
examination of a neighbourhood plan, namely, to consider whether the “basic
conditions had been met”. He held that the Examiner had been entitled to conclude
that the draft plan had regard to the NPPF because the need to plan positively for
growth was acknowledged and the relevant policy did not place a limit on the total
amount of housing to be built (paragraphs 33 and 81 of judgment).
62.
In addition the Judge held:(i)
The basic condition in paragraph 8(2)(e) only requires the Examiner to
consider whether the draft neighbourhood plan as a whole is in general
conformity with the adopted development plan as a whole. Whether there is a
tension between one policy of the neighbourhood plan and one element of the
local plan is not a matter for the Examiner to determine (paragraph 82);
(ii)
The Examiner was not obliged to consider the wider ramifications of the draft
policy upon the delivery of housing. The limited role of an Examiner to have
regard to national policy when considering a draft policy applicable to a small
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geographical area should not be confused with the more investigative scrutiny
required by the 2004 Act in order for an Inspector examining a draft local plan
to determine whether such a plan is “sound” (see sections 20(7) to (7C) and 23
of the 2004 Act) (paragraph 83 of the judgment);
(iii)
Whereas under paragraph 182 of the NPPF a local plan needs to be “consistent
with national policy”, an Examiner of a neighbourhood plan has a discretion to
determine whether it is appropriate that the plan should proceed having regard
to national policy (paragraph 84);
(iv)
The Examiner of a neighbourhood plan does not consider whether that plan is
“justified” in the sense used in paragraph 182 of the NPPF. In other words, the
Examiner does not have to consider whether a draft policy is supported by a
“proportionate evidence base” (paragraph 85).
To some extent the principles set out above are reflected in the Secretary of State’s
PPG. It is to be assumed that those principles were well-known to him when he
reached his decision in the present case on 4 September 2014 (see e.g. Bloor Homes
East Midlands Ltd v Secretary of State for Communities and Local Government
[2014] EWCH 754 (Admin) at paragraph 19(6)).
63.
In Gladman Developments Ltd v Aylesbury Vale District Council [2014] EWHC
4323 (Admin) the Claimant challenged a decision to “make” a neighbourhood plan
essentially on the grounds that it was legally impermissible for a neighbourhood plan
to include policies for the allocation of housing sites and the delineation of settlement
boundaries at a time when the local planning authority had not adopted a local plan
containing strategic housing policies to meet the objectively assessed housing needs
of the district. The challenge failed. Lewis J held:(i)
Paragraph 8(2)(e) of schedule 4B to the 1990 Act only requires general
conformity with the strategic policies of the development if such policies exist.
Where they do not, paragraph 8(2)(e) is not engaged, but that does not mean
that a neighbourhood plan cannot be prepared and formally “made”
(paragraphs 58 to 59 and 65 of the judgment);
(ii)
If a local planning authority finds that housing needs in its area are not being
met, it should review its development plan documents. Once adopted such
policies prevail over any earlier neighbourhood plan inconsistent therewith
(section 38(6) of the 2004 Act) (paragraph 66);
(iii)
If a neighbourhood plan (or certain of its policies) becomes out of date, that
may be a material consideration justifying departure from that plan and
granting planning permission for development in breach of those policies
(paragraph 67);
(iv)
Although a neighbourhood plan may include policies on the location and use
of land for housing (or other development) and may address local needs in its
area, such policies should not be treated as “strategic policies” contained in a
development plan document. The body responsible for a neighbourhood plan
does not have the function of preparing strategic policies to meet the assessed
development needs across a local plan area (paragraphs 73 to 78).
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64.
The judgment in Gladman was handed down on 18 December 2014. On 5 February
2015 Sullivan LJ granted leave to appeal on the basis that, even if the grounds of
appeal did not have a real prospect of success, the proper interpretation of legislation
and national policy governing the relationship between neighbourhood plans and
development plan documents should be considered by the Court of Appeal as a matter
of considerable public importance. Gladman was to have been heard together with an
appeal from Larkfleet Homes Limited v Rutland County Council [2014] EWHC 4095
(Admin). But a consent order has been filed withdrawing the appeal in Gladman. In
Larkfleet Collins J rejected a contention that the legislation on its true construction
does not permit neighbourhood plans to make site allocations. This contention has not
been advanced in the present case, but if the Court of Appeal were to accept it, then it
would reinforce the conclusions to which I have come under grounds 1 and 2 below.
The Court’s powers to quash
65.
Section 288 of the 1990 Act provides as follows:“(1) If any person –
(a)…….
(b) is aggrieved by any action on the part of the Secretary of
State to which this section applies and wishes to question the
validity of that action on the grounds –
(i) that the action is not within the powers of this Act, or
(ii) that any of the relevant requirements have not been
complied with in relation to that action,
He may make an application to the High Court under this
section.
(2), (3), (4) …..
(5) On any application under this section the High Court –
(a) …..;
(b) if satisfied that the order or action in question is not within the powers of
this Act, or that the interests of the applicant have been substantially
prejudiced by a failure to comply with any of the relevant requirements in
relation to it, may quash that order or action.”
66.
The general principles by reference to which a Court may quash a decision of an
Inspector or the Secretary of State are well-established. I gratefully adopt the
summary given by Lindblom J at paragraph 19 of his judgment in Bloor Homes East
Midlands Ltd (supra).
67.
Mr. Honey adds that an adverse inference that a decision-maker misunderstood the
materiality of a matter or failed to have regard to it, should only be drawn in relation
to something which is a main issue and where all other known facts and
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circumstances appear to point overwhelmingly to a different conclusion (South Bucks
District Council v Porter (No. 2) [2004] 1WLR 1953 para 34).
68.
Mr Boyle QC’s oral submissions began with ground 4.
Ground 4
69.
The Claimant challenges DL 16 and 19 in which the Defendant attached significant
weight to the fact that the appeal site had not been identified for housing purposes in
the draft neighbourhood plan which instead had “identified allocations elsewhere”
(i.e. at Hurstpierpoint). Mr Boyle QC submitted that the Defendant failed to identify
the nature and extent of any conflict with the plan properly interpreted. He said that
the nature of any such conflict should be made sufficiently clear, partly so as to enable
a fair-minded reader to see whether the policy in question had been properly
understood. Because the decision turned upon the plan, Mr Boyle relied upon Tesco
Stores Ltd v Dundee City Council [2012] PTSR 983 at paragraphs 17-22. The
interpretation of planning policy is matter of law and therefore a matter to be decided
by the courts. He also relied upon Lord Reed’s statement at paragraph 22:“Where it is concluded that the proposal is not in accordance
with the development plan, it is necessary to understand the
nature and extent of the departure from the plan which the grant
of consent would involve in order to consider on a proper basis
whether such a departure is justified by other material
considerations.”
Although that statement was directed to conflict with a statutory development plan,
there is no logical reason why the same approach should not also apply where conflict
with a draft plan is relied upon as a “material consideration”.
70.
Mr Boyle QC submitted that the decision letter simply focussed on the fact that the
appeal site had not been identified or allocated in the draft plan for housing. But,
whereas the draft plan had identified four specific sites in Hurstpierpoint, it had
expressly refrained from identifying any sites at all in Sayers Common, but simply
stated that 30-40 homes should be provided there (see e.g. paragraph 5.3 and Policy
H4). Accordingly, he said that a proposal for say 30 houses (for example a smaller
scheme on the appeal site itself) could not be in conflict with the draft plan on the
grounds that the site had not been identified in that document. In the absence of any
other conflict with the draft plan, a proposal for 30 houses which overcame the
drainage and infrastructure issues would accord with the plan. Accordingly, it was
submitted that the Defendant’s reliance upon the non-identification of the appeal site
in the draft plan involved a misinterpretation of the plan’s policies.
71.
Mr Boyle QC added that although it might have been said that the proposal conflicted
with draft policy H4 because the scale of the appeal scheme for 120 houses was far in
excess of the 30-40 dwellings proposed for Sayers Common as a whole, the Secretary
of State did not expressly rely upon that point in his decision letter. Had he done so,
the Secretary of State would have needed to weigh that conflict against his own clear
conclusions that the appeal site was a sustainable location for housing, the
infrastructure constraints affecting Sayers Common would be overcome by the appeal
proposal, and the density and scale of the housing proposed was acceptable for Sayers
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Common (see paragraphs 51 – 53 above). If the neighbourhood plan had already been
formally approved, the absence of any harm, including harm arising from conflict
with policy H4, could result in planning permission being granted. The same approach
would apply where a neighbourhood plan is in draft, subject to any separate, and
properly justifiable, prematurity objection. In the present case the decision letter
made no attempt to weigh the positive findings in support of the proposal against any
complaint that its scale exceeded the 30-40 dwellings in draft policy H4.
72.
Mr. Honey responded firstly that the Secretary of State’s decision letter did not
dismiss the appeal because of any conflict with the draft plan. Instead, he said that the
sole reason for refusal had been the prematurity of the proposal in relation to that
plan. The issue of “prematurity” is the subject of a separate challenge under ground
2.
73.
I agree with Mr. Boyle QC that the Secretary of State dismissed the Claimant’s appeal
because of a combination of conflict with the policies of the emerging Neighbourhood
Plan and prematurity in relation to the examination of that plan. The appeal was not
dismissed simply because of prematurity. Although the second sentence of DL19
relied upon prematurity to dismiss the appeal, it is plain that DL16 and the first
sentence of DL19 also rejected the proposal because it had not been “identified” in the
draft plan for release, in other words, because of a conflict with the draft
neighbourhood plan.
74.
Moreover, there is a second aspect of DL16 which makes it plain that the Secretary of
State did not treat prematurity as the sole reason for dismissing the appeal. He
decided that it was appropriate “to tip the planning balance in favour of the emerging
neighbourhood plan proposals” “in the light of these [considerations]”. The matters
to which he was referring included not only the identification of “housing allocations
elsewhere” (i.e. at Hurstpierpoint) but also “the [District] Council has yet to complete
an up-to-date objectively assessed housing needs analysis against which to measure
the overall neighbourhood plan proposals”. It could not be suggested, and Mr. Honey
did not attempt to do so, that this second factor had anything to do with a prematurity
objection. Instead, it was a matter relied upon by the Secretary of State, like the nonidentification of the appeal site, in order to give greater weight to his conclusion that
the appeal proposals conflicted with the emerging neighbourhood plan.
75.
It should also be remembered that the Secretary of State chose to determine the
Claimant’s appeal alongside two other proposals. The Little Park Farm/Highfield
Drive proposals were approved by the Secretary of State in part because the two sites
had been allocated in the draft neighbourhood plan, a matter to which he attached
“significant weight” (see DL 17 and 18). The Defendant did not raise prematurity as
an issue in those appeals. However, the Secretary of State dismissed the Claimant’s
appeal not only because of prematurity but also because the site had not been
identified in the draft plan, a matter to which he gave “significant weight” once again.
Therefore, an important distinction between the two decisions was that the appeal site
had not been “identified” in the draft plan for release as a housing site whereas the
other sites had, i.e. it was in conflict with that plan.
76.
Secondly, Mr. Honey put forward an alternative argument in order to avoid the
Claimant’s submission that the Defendant had misinterpreted the draft plan (the “nonidentification of the appeal site” point – see paragraph 70 above). He submitted that it
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should be inferred that the Secretary of State treated the scale of the Claimant’s
proposal as conflicting with the distribution of housing proposed in the draft
neighbourhood plan, or the spatial strategy of the draft plan. In part he relied by
analogy upon paragraphs 36, 44, 46 to 48, 51 and 53 of the judgment of Lindblom J in
Crane v Secretary of State for Communities and Local Government [2015] EWHC
425 (Admin). In that case it was held, on a proper construction of the policies, that
the Secretary of State had been entitled to conclude that a proposal for housing on an
unallocated site was in conflict with an approved neighbourhood plan which
contained comprehensive site allocations sufficient to meet the requirement set for
that area in an adopted district-wide core strategy. Mr Honey submitted that the same
approach should be adopted in the present case to the interpretation of the draft plan
and thus to the decision letter.
77.
The poor quality of the reasoning in the decision letter on this aspect, in contrast to
the clear reasoning of the decision letter in Crane, is most regrettable, particularly in a
case where the Defendant was differing from his Inspector on a critical issue to do
with planning policies, rather than, for example, aesthetic judgment. Nevertheless, I
accept Mr Honey’s second submission.
78.
At first sight it would appear from DL 16 and DL 19 that the Secretary of State only
had in mind the non-identification of the appeal site in the draft plan. But the
statement in DL 19 that the examination of the draft plan might show that more land
needs to be “allocated” indicates that what the Secretary of State in fact had in mind
was the possibility that the scale of the housing proposed for Sayers Common might
be increased. In addition, I explain below when dealing with ground 1 that the
Defendant treated draft policy H4 as imposing a cap which would be breached by the
appeal proposal. For these reasons I accept that, reading the decision letter as a whole
and in the context of the materials before him, the Secretary of State decided that the
proposal conflicted with the draft policy for Sayers Common, because the 120 houses
proposed substantially exceeded the 30 – 40 dwellings identified in draft policy H4.
The references to the non-identification of the appeal site in the draft plan were
simply a clumsy way of expressing this point.
79.
Although I accept that the approach taken in Crane to the construction of policy is
analogous, it is also necessary to bear in mind for the remaining issues in this
challenge, that there are some important differences between the two cases. In Crane
the Secretary of State gave an explicit and detailed explanation as to why the proposal
was in clear conflict with the comprehensive spatial strategy of the neighbourhood
plan (see e.g. paragraphs 5, 7 - 8, 11, 13, 29 and 34 of the judgment). First, the
neighbourhood plan contained allocations and not housing numbers without
allocations. Second, those allocations met substantially more than the housing needs
identified by the adopted core strategy for the area of the neighbourhood plan. Third,
the documentation for the examination of the plan had explained why allocations to
meet the requirements of the Core Strategy had been located on certain sites and
others had been rejected. Mr. Crane’s site had been considered to be remote from the
village centre (paragraphs 33 and 34 of judgment). In the present case the draft
neighbourhood plan did not propose any allocations at Sayers Common or discuss the
relative merits of sites. It merely proposed, in the absence of a core strategy or even
an up to date and objective assessment of housing needs, to cap the number of new
dwellings for the village as a whole at 30 - 40.
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80.
Accordingly, I must reject Mr Boyle’s first submission as summarised in paragraph
70 above. The Defendant did not misinterpret the draft plan by failing to appreciate
that it contained no allocations of sites at Sayers Common. However, Mr. Honey’s
second submission (paragraph 76 above) does not overcome the flaw in the decision
letter already identified in paragraph 71 of this judgment. The Secretary of State was
obliged to weigh the conflict with the strategy in the draft plan, by virtue of the scale
of the appeal proposal, against his positive findings that the proposal would give rise
to no harm as regards scale, its effect on the character of the village, infrastructure
requirements or other harm. The decision letter failed to carry out that exercise.
81.
Moreover, the Defendant’s decision is legally flawed in other respects. As referred to
in paragraph 74 above, the Secretary of State decided to “tip the balance in favour of”
the draft proposals in the neighbourhood plan as part of his reasoning for dismissing
the appeal, because the District Council had yet to complete an up-to-date objectively
assessed analysis of housing needs against which to measure those draft proposals.
Although it had been held that a body preparing a neighbourhood plan does not have
the function of preparing strategic policies to meet assessed housing needs across a
local plan area and need not be concerned with wider issues for the delivery of
housing (paragraphs 62 and 63 above), it cannot follow that the absence of any
objective assessment of housing needs at the district level could justify increasing the
weight to be given to a draft neighbourhood plan. The lack of such an assessment
was plainly irrelevant for that purpose. I do not intend any criticism of Mr. Honey
when I say that he was unable to proffer any explanation for the Secretary of State’s
reliance in DL16 upon this factor.
82.
The legal errors in the decision do not end there. In the Claimant’s post-inquiry
representations to the Secretary of State it was submitted that in the absence of any
objective assessment of housing need, whether for the district or for the parish, the
neighbourhood plan should not attempt to fix an overall quantum of new homes for
the parish or Sayers Common, following the conclusions in the Examiner’s Report
into the Ascot, Sunninghill and Sunningdale Neighbourhood Plan. It was said,
therefore, that the amount of new housing in Sayers Common should not be capped at
30-40 dwellings (see paragraph 47(iv) above). That was a substantial point which the
Secretary of State was obliged to deal with in the decision letter.
83.
The Secretary of State’s reliance in DL16 upon the lack of an objective assessment of
housing need in order to increase the weight given to the draft plan only serves to
demonstrate that he failed to take into account (let alone give reasons in relation to)
the argument that there should not be any such cap. The Secretary of State’s
submission that he treated the appeal proposal as conflicting with the distribution of
housing in policies H3 and H4 of the draft plan reinforces this point. Plainly, the
Secretary of State failed to give any consideration to the merits of the Claimant’s
proposal in the light of all of his conclusions in favour of granting permission, but on
the basis that the cap in policy H4 was liable to be removed.
84.
For these reasons, ground 4 succeeds and the decision must be quashed, in summary,
for each of the following separate reasons. First, the Defendant treated the proposal as
being in conflict with the scale of housing proposed in the draft plan for Sayers
Common, but he failed to weigh that conclusion against his findings that the scale and
density of the proposal are acceptable for the village, the location is sustainable and
the proposal would overcome any infrastructure constraints. Second, and in any
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event, the Secretary of State decided to increase the weight given to the policies in the
draft plan because of an immaterial consideration, namely the lack of any up-to-date
objective assessment of housing needs against which to measure the proposals in that
plan. Third, the Secretary of State failed to take into account, alternatively to give any
reasons in relation to, the Claimant’s case that the weight to be attached to policy H4
of the draft plan should be reduced because it imposed a cap on housing at Sayers
Common despite the absence of an up-to-date objective assessment of housing needs.
85.
Mr. Honey accepted very fairly that if the Court should conclude that either grounds 3
or 4 are made out, it would be inappropriate to ask for the Court’s discretion to be
exercised against the quashing of the decision.
Ground 3
86.
It is common ground that policies C1 and H1 to H4 of the neighbourhood plan
represent “housing supply policies” for the purposes of paragraph 49 of the NPPF (see
paragraphs 32 and 43 above). Accordingly, there is no dispute that if at the date when
that plan formally became part of the statutory development plan (19 March 2015) a 5
year supply of housing land could not be shown, (a) those policies would then be
treated as out of date and (b) the presumption in paragraph 14 of the NPPF would
apply to a decision at that stage whether to grant planning permission.
87.
In Crane Lindblom J held (paragraph 71) that in such a situation the NPPF does not
prescribe the weight to be given to “out of date policies”. As he pointed out, in many
cases the weight may be greatly reduced, but this will vary according to the
circumstances. It must follow, of course, that where paragraph 49 of the NPPF
applies, the decision-maker is also obliged to decide how much weight should be
given to the housing supply policies of a plan (or plans) by assessing the reasons why
those policies are to be treated as out of date and any other relevant circumstances.
88.
In the present case it is accepted by the Secretary of State that in his decision he did
not apply paragraph 49 of the NPPF to the policies of the draft neighbourhood plan
and therefore the weighting exercise to which I have just referred was not carried out.
Accordingly, the issue between the parties is whether, as the Claimant maintains,
paragraph 49 can apply to an emerging development plan or whether, as the
Defendant maintains, it only applies to a plan forming part of the statutory
development plan. The Claimant submits that this issue is important in the present
case because in DL16 and DL19 the Secretary of State decided to attach “significant
weight” to the housing supply policies in the draft neighbourhood plan simply
because of the stage reached in the process leading to formal approval of those
policies and without also weighing the considerations set out in paragraph 71 of Crane
(see paragraph 87 above).
89.
Mr. Honey rightly emphasised the need to read the NPPF as a whole (see Crane
paragraph 73). That must apply to the proper understanding of paragraphs 14 and 49.
It should also be emphasised that the issue between the parties in this case applies not
only to draft neighbourhood plans but also to draft local plans.
90.
Paragraph 49 appears in the section of the NPPF (paragraphs 47 to 55) devoted to
“delivering a wide choice of high quality homes”. The overall objective of paragraph
47 is “to boost significantly the supply of housing”. The first requirement is for local
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planning authorities “to use their evidence base to ensure that their Local Plan meets
the full, objectively assessed needs for market and affordable housing in the housing
market area, as far as is consistent with the policies set out in this Framework…”.
The second requirement, to identify and update annually a 5 year supply of
deliverable housing land, is set out in paragraph 18 of this judgment. The third
requirement is that the authorities should “identify a supply of specific, developable
sites or broad locations for growth, for years 6 - 10 and, where possible, for years 11 15”. Fourthly, local planning authorities must illustrate the expected rate of housing
delivery (both for market and affordable housing) “through a housing trajectory for
the plan period and set out a housing implementation strategy for the full range of
housing detailing how they will maintain delivery of a five-year supply of housing
land to meet their housing target”. Thus, it is plain that national policy attaches
considerable importance to local planning authorities being able to identify a 5 year
supply of housing land to meet properly assessed housing needs on an ongoing basis.
91.
The requirement that a local planning authority should be able to identify a 5 year
supply of housing land pre-dates the NPPF. It was previously contained in paragraph
71 of PPS3 (dated June 2011). It is helpful to compare PPS3 and the NPPF.
92.
In St Albans City and District Council v Hunston Properties [2013] EWCA Civ 1610
and Solihull Metropolitan Borough Council v Gallagher Estates Limited [2014]
EWCA Civ 1610 the Court of Appeal decided how the approach to the provision of
housing in the NPPF compares to the former PPS3 (see e.g. Gallagher at paragraphs
14 to 16):(i)
Whereas PPS3 required a housing strategy to be formulated by carrying out a
balancing exercise of all material considerations (including need, demand and
other policy matters), the NPPF requires authorities making local plans to
focus on the “full objectively assessed need for housing” and to meet that need
unless, and only to the extent that, other policy factors in the NPPF dictate
otherwise;
(ii)
Thus according to paragraph 14 of the NPPF, Local Plans must meet
objectively assessed housing needs (with sufficient flexibility to adapt to rapid
change) unless “any adverse impacts of doing so would significantly and
demonstrably outweigh the benefits, when assessed against the policies in this
Framework taken as a whole” or “specific policies in this Framework indicate
development should be restricted”;
(iii)
The NPPF contains “a greater policy emphasis on housing provision”, by
laying down an approach which requires the making of a local plan to begin
with full objectively assessed housing needs and only then to determine
whether other NPPF policies require that less housing should be provided than
needed;
(iv)
The increased emphasis in the NPPF upon the provision of housing can
properly be described as a “radical change”.
Similarly, paragraph 9 of the NPPF states that the pursuit of sustainable development
involves not only seeking positive improvements in the quality of the environment
and in people’s quality of life, but also “widening the choice of high quality homes”.
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The first and third core principles in paragraph 17 of the NPPF (quoted in paragraph
23 above) are also significant in this context.
93.
In Tewkesbury Borough Council v Secretary of State for Communities and Local
Government [2013] EWHC 286 (Admin) Males J compared the policies in PPS3 and
the NPPF requiring a 5 year supply of housing land (see paragraphs 16 to 21).
Paragraph 71 of PPS3 provided that where a local planning authority could not
demonstrate an up-to-date 5 year supply of deliverable housing sites, planning
applications for housing should be considered “favourably” having regard to policies
in the PPS including the need to ensure that developments reflect “the need and
demand for housing in, and the spatial vision for, the area”. The Judge concluded
that:“both before and after the issue of the NPPF, the need to ensure
a five year supply of housing land was of significant
importance.”
He pointed out that whereas the PPS had required “favourable consideration” to be
given to housing proposals (subject to the policies of PPS3), the NPPF created a
“rebuttable presumption in favour of the grant of planning permission”. That
distinction is consistent with the view of the Court of Appeal in Gallagher that the
increased emphasis in the NPPF upon the provision of housing represents a “radical
change” from PPS3. It is also consistent with the explicitly stated need “to boost
significantly the supply of housing”. At the same time, I agree with the observation
of Males J that however important the absence of a 5 years supply of housing may be
in the circumstances of a particular case, the NPPF does not provide that that factor
must be treated as conclusive by itself (paragraph 21 of Tewkesbury).
94.
It is plain that paragraph 71 of PPS3 did not restrict the requirement to give
“favourable consideration” to a housing proposal (for example on an unallocated site)
to cases where the relevant planning policies were solely contained in a statutory
development plan. Nor did it treat that “favourable consideration” as offsetting only
policy objections contained in a statutory, as opposed to an emerging, development
plan.
95.
In my judgment it would be inappropriate to treat paragraph 49 as restricting the
circumstances in which national policy lends additional support to a housing proposal
because of the lack of a 5 year supply of land, to cases where the “relevant policies for
the supply of housing” are contained in statutory, but not draft, development plans.
Such a change in national policy regarding the importance of maintaining a 5 year
supply of housing land would require explicit language to that effect (see by analogy
Redhill Aerodrome Ltd v Secretary of State for Communities and Local Government
[2015] PTSR 274 paragraph 16). I am reinforced in that view by the “radical change”
introduced by the NPPF which gives greater, not less, emphasis to meeting housing
needs.
96.
Paragraph 49 of the NPPF simply refers to “relevant policies for the supply of
housing” without restricting that expression to policies in a statutory development
plan.
97.
But Mr. Honey relied upon the first sentence of paragraph 49 which states:-
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“Housing applications should be considered in the context of
the presumption in favour of sustainable development.”
He submits that that is a reference back to paragraph 14 of the NPPF and that because
references in paragraph 14 to the “development plan” are concerned solely with
documents forming part of the statutory development plan, and not with draft plans,
paragraph 49 must be read down in the same way.
98.
I agree with Mr. Honey that references in paragraph 14, and generally in the NPPF, to
“the development plan” relate to adopted or formally approved plans not draft plans
(see also the definition of “development plan” in the Glossary at Annex 2 to the
NPPF). Nothing in this judgment affects that general point. However, that is
insufficient to deal with the proper construction of paragraph 49.
99.
The NPPF should not be construed as if it were a statute or a contract, any more than
a development plan, and regard should be had to both the context and object of the
policy being interpreted (Tesco Stores v Dundee City Council [2012] PTSR 983
paragraphs 19, 21 and 25 - 27). Thus, it may be relevant, and sometimes necessary, to
adopt a purposive construction of the policy in question.
100.
In my judgment, the starting point should be paragraph 49 rather than paragraph 14.
Paragraph 14 is of general application for the determination of planning applications
in the context of section 70(2) of the 1990 Act and section 38(6) of the 2004 Act. We
are dealing instead with a specific group of policies, which have the objective of
boosting significantly the supply of housing and requiring local planning authorities
to identify on a continuing basis a 5 year supply of housing land to meet properly
assessed housing needs. In particular, we are concerned with a policy, paragraph 49,
which deals with the consequences of an authority’s failure to meet that obligation.
101.
As I have said, the first key phrase in paragraph 49, “relevant policies for the supply
of housing”, is not limited to relevant policies in the statutory development plan. The
language is capable of referring to policies in a draft development plan. It is also
capable of referring to policies in a statutory development plan which as a matter of
fact is up to date because that plan has only recently been adopted. Thus, the second
key phrase, “should not be considered up-to-date”, operates as a deeming provision
which treats the relevant policies as being out of date so as to engage “the
presumption in favour of sustainable development” (the third key phrase in paragraph
49). Plainly, the object is to increase the likelihood of planning permission being
granted for a housing proposal where a 5 year supply does not exist, by applying a
“presumption in favour of sustainable development”, subject to taking into account all
other material considerations in a particular case, whether they tell in favour of or
against the grant of planning permission, or are neutral.
102.
Paragraph 6 of the NPPF states that “the purpose of the planning system is to
contribute to the achievement of sustainable development” and that paragraphs 18 to
219 of the NPPF, taken as a whole, define what is meant by “sustainable
development”. Paragraph 9 specifically identifies “widening the choice of high
quality homes” (dealt with in paragraphs 47 to 55 of the NPPF) as one aspect of the
“pursuit of sustainable development” (see paragraph 92 above) Therefore what is to
be encouraged as “sustainable development” is not assessed solely against policies in
statutory development plans. The concept is much broader.
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103.
Paragraph 14 explains what the presumption in favour of sustainable development
means for “decision-taking”. The first bullet point requires development in
accordance with the statutory development plan to be approved without delay. The
second bullet point creates a presumption in favour of granting permission in three
situations. The first is where there is no statutory development plan. The second is
where there is such a plan, but it is silent on the matter in question. The third is where
“relevant policies are out-of-date”. It is arguable that that phrase is not restricted to
policies in a statutory development plan, but even if the contrary view is taken, it does
not follow that Mr Honey’s reading of paragraph 49 is correct. First, paragraph 14 is
simply a broad statement of general application. Second, it does not deal specifically
with a situation where there is a shortage of housing land. Third, the phrase in
paragraph 14 “relevant policies are out-of-date” without more, simply refers to
policies which are actually out of date. Fourth, paragraph 49 operates as a deeming
provision so as to require housing supply policies to be treated as “out-of date” even
if that would not otherwise be the case under paragraph 14. Fifth, it follows that
paragraph 49 can only be read as extending the ambit of paragraph 14. It has the effect
of extending the scope of the presumption in favour of development set out in
paragraph 14, (a) so as to apply to draft as well as adopted development plan policies,
but (b) only where a 5 year supply of housing land does not exist and (c) solely in
relation to “housing supply policies”.
104.
Once the correct interaction between paragraphs 14 and 49 is appreciated, in a case
where a 5 year supply of housing land does not exist, it does no violence to the
language of paragraph 14 to treat the presumption in favour of sustainable
development as weighing against housing supply policies, including those which
restrain development, whether they are contained in statutory or draft development
plans.
105.
As Lindblom J pointed out in Crane (paragraph 71), where paragraph 49 and the
presumption in paragraph 14 apply, the NPPF does not stipulate how much weight
should be given to “out of date” policies. That is a matter to be assessed by the
decision-maker in the light of the reasons for the shortfall and other relevant
circumstances, including, for example, any interim measures being taken by the local
planning authority to release land for housing in order to address the shortfall (see
paragraph 87 above).
106.
The construction for which the Claimant has contended is sensible. First, it promotes,
rather than undermines, the positive objectives of paragraphs 47 to 49 of the NPPF.
Second, paragraph 49 is a deeming mechanism which simply uses the label “out of
date” to engage the presumption in favour of granting permission contained in
paragraph 14. Third, even on the Secretary of State’s case, paragraph 49 would
operate to treat the housing supply policies in a statutory development plan as being
“out of date” even if the document had been formally approved only shortly
beforehand and could not otherwise be regarded as “out of date”. That could happen
where the rate of take up of housing land during the period immediately before and
after adoption was much higher than had been assumed in the policies for the overall
duration of the plan. It would make no sense to treat the “presumption in favour” as a
factor weighing against, for example, a general countryside protection policy
contained in a statutory development plan but not the same policy contained in a draft
plan, a fortiori where the latter would otherwise attract considerable weight because it
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is close to being adopted. The same analysis applies to policies identifying the
numbers and locations of housing to be provided.
107.
Mr. Honey submitted that the construction of paragraph 49 which I have accepted
“would mean that no emerging development plan document [e.g. a local plan] which
sought to address a shortfall in housing land supply could ever be taken into account
as a weighty material consideration and applied whilst it was emerging, because until
the point of adoption the authority could not demonstrate a five year supply of
deliverable housing sites”. He added that “it must be possible to take into account the
housing allocations in an emerging development plan document which is at an
advanced stage of preparation before that plan is adopted”. In the light of the decision
in Crane, that concern is wholly unjustified. Paragraphs 14 and 49 of the NPPF do
not prevent any regard being had to policies which are deemed to be out of date
because of the lack of a 5 year supply of housing land. Nor does the NPPF specify
how much weight should be given to such policies.
108.
The NPPF does not lay down a monolithic approach to that issue, whether in relation
to an adopted or a draft local plan. Instead, the issue is to be assessed according to the
relevant circumstances of the case, including the reasons for the shortfall and steps
being taken to address that issue, in addition to applying the presumption in favour of
granting permission and considering the matters specified in paragraph 14 of the
NPPF (see Crane paragraphs 71 to 75).
109.
In many cases a neighbourhood plan will be prepared after housing requirements have
been assessed and strategic policies formulated in an adopted local plan. In that
situation, the policies in a neighbourhood plan must be “in general conformity with
the strategic policies” of that local plan (see paragraph 56 above). Paragraph 184 of
the NPPF adds that a neighbourhood plan should reflect, and should plan, positively
to support the strategic policies in a local plan. “Neighbourhood plans….should not
promote less development than set out in the local plan or undermine its strategic
policies”.
110.
Where a neighbourhood plan is being prepared so as to be in general conformity with
the relevant parts of a local plan, but a 5 year supply of housing land does not exist,
paragraph 49 applies to both the housing supply policies in both the adopted local
plan and the draft neighbourhood plan, so that when a planning application for
housing comes to be determined (a) the presumption in paragraph 14 will apply
(subject to assessing the matters specified which may tell against the grant of planning
permission) and (b) the weight to be attached to housing supply policies in each of the
plans will need to be assessed and taken into account as explained in Crane.
111.
The same principles apply in a situation where a local plan has not yet been adopted, a
5 year supply of housing land for the district cannot be shown, but a draft
neighbourhood plan “seeks to lead” as Mr. Honey put it, in order to make provision
for housing needs in a much smaller plan area. Mr. Honey complains that on the
construction of paragraph 49 I have upheld, such a draft neighbourhood plan would
always be treated as “out of date” unless and until the 5 year land supply issue for the
whole district is resolved. But this concern is also, with respect, misconceived (see
paragraphs 107 to 108 above).
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112.
A further problem with Mr. Honey’s complaint is that it would also arise where a
neighbourhood plan has been recently approved, in advance of any local plan, but
nevertheless has to be treated as “out of date” because of the lack of a district-wide 5
year supply of housing land and the application of paragraphs 14 and 49 of the NPPF
(see the common ground recorded at paragraph 86 above). The discontinuity between
the geographical coverage of a neighbourhood plan and the requirement of a 5 year
supply for the whole of a local plan area is inherent in paragraphs 14 and 49 of the
NPPF, even on the construction for which the Secretary of State contends. It
therefore provides no support whatsoever for his argument that paragraph 49 does not
apply to draft development plans, including a neighbourhood plan. Instead, the
outcome of applying paragraphs 14 and 49 of the NPPF where either a draft or
approved neighbourhood plan precedes a local plan, will depend upon the outcome of
the assessment described in paragraph 105 above in the particular circumstances of
each case.
113.
By contrast the Secretary of State’s construction of paragraph 49 of the NPPF would
cause that policy to operate in an arbitrary way for which no justification has been
offered. In a case where a district-wide 5 year supply of housing land does not exist,
paragraphs 14 and 49 of the NPPF would apply to the housing supply policies in a
neighbourhood plan from the very moment when it becomes part of a statutory
development plan, but not a few months beforehand or even a week beforehand.
114.
For all these reasons, I conclude that paragraphs 14 and 49 do apply to the housing
supply policies in a draft development plan, including a draft neighbourhood plan, and
therefore should have been applied in the present case when assessing the weight to
be attached to those policies in the Neighbourhood Plan and to any conflict with such
policies. The Defendant accepts that that was not done in the decision letter and so I
uphold ground 3 as a separate reason for quashing the decision.
115.
Even if a contrary view were to be taken, so that paragraph 49 does not apply to
housing supply policies in an emerging plan, logically it would nevertheless be
necessary for the decision-maker to assess how much weight should be given to those
policies, and that must involve taking into account the lack of housing land and the
clear policy imperative in paragraphs 47 to 49 that a sufficient supply of land should
be identifiable at all times. In other words the exercise which Crane requires to be
carried out where paragraph 49 does apply (see paragraphs 87, 105 and 108 above),
would still need to be undertaken for housing supply policies contained in a draft
plan. In the present case it is accepted by the Secretary of State that when he decided
how much weight to give to the draft neighbourhood plan he did not carry out that
exercise (see paragraphs 87 to 88 above) and so the decision must be quashed in any
event.
Ground 2
116.
The Claimant submits that the Secretary of State failed to take into account and apply
his own policy on prematurity contained in the PPG (see paragraph 26 above). In
particular it is submitted that:(i)
The Defendant failed to indicate how the grant of permission would
predetermine decisions about the scale, location or phasing of new
development that were “central” to the draft Neighbourhood Plan;
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(ii)
The Defendant failed to identify any adverse impacts from granting permission
or to consider whether it was clear that such impacts significantly and
demonstrably outweighed the benefits of the proposal.
117.
Mr. Honey submitted that in DL15 the Secretary of State had regard to the NPPF and
the PPG on the issue of prematurity. But it is important to note that DL15 simply
referred to the weight which to be given to the draft plan by virtue of the stage it had
reached in the examination process. In my judgment that is only one of the
considerations in the PPG when dealing with prematurity, namely prematurity is
seldom justified as a ground of refusal in the case of a draft neighbourhood plan
before the end of the local authority publicity period (see paragraph 26 above).
Whether a draft plan has reached a sufficiently advanced stage is simply treated by the
PPG as an entry point for considering prematurity as a possible reason for refusal.
That factor does not exhaust in all cases the factors which the PPG requires to be
assessed. Plainly, therefore, DL15 did not address the key parts of the PPG upon
which ground 2 relies.
118.
Under grounds 3 and 4 I have already considered the way in which DL16 dealt with
the weight to be given to the draft Neighbourhood Plan. I merely add that DL16 did
not address (a) the predetermination of issues central to the plan or (b) how any such
predetermination would amount to an adverse impact clearly outweighing the benefits
of the proposal.
119.
Although Mr. Honey argued that prematurity was the sole reason why the Secretary of
State disagreed with the Inspector’s recommendation to grant planning permission,
the only explicit reference to that subject is to be found in DL19. Having stated that
the appeal site had not been allocated in the draft neighbourhood plan, the decision
letter continued:“Therefore, while he appreciates that the remaining stages
through which the Neighbourhood Plan has to pass may show
that more land needs to be allocated, he considers that it would
be inappropriate to prejudge that at this stage.”
120.
Mr. Honey submitted that from the circumstances known to the parties it was obvious
how allowing the appeal would prejudice the taking of a decision on a matter central
to the examination of the draft plan. He said that the draft plan proposed 282 - 292
new dwellings for the parish as a whole, of which 85% would be distributed to
Hurstpierpoint and only 15% to Sayers Common and so allowing the appeal would
predetermine (a) whether the total housing allocation should be increased to 372 units
and (b) whether the total allocation for Sayers Common should be increased from 30 40 units to 120 units. However, as explained in paragraph 36 above, the allocations of
sites in Hurstpierpoint were already a fait accompli by the time of the examination
into the neighbourhood plan.
121.
Mr. Boyle QC responded that the Secretary of State’s submissions demonstrated that
he had not in fact had regard to key aspects of the policy in the PPG on prematurity.
In particular he did not address the requirement to identify how granting permission
would be prejudicial to the outcome of central issues affecting the draft plan, so as to
amount to an adverse impact significantly and demonstrably outweighing the benefits
already accepted by the Secretary of State. I agree with Mr. Boyle.
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122.
In my judgment it was wholly unsatisfactory for the Secretary of State to disagree
with the Inspector’s carefully reasoned recommendation that the appeal should be
allowed by putting forward such sparse reasoning on prematurity as appears in DL 19.
He simply stated that it was “inappropriate” to prejudge whether more land should be
allocated in Sayers Common. That did not give effect to the criteria in the PPG.
Furthermore, when all the relevant circumstances are borne in mind, it is plain that the
Secretary of State did not take into account and apply his policy on the circumstances
in which prematurity may justify a refusal of planning permission.
123.
As Mr. Honey explained, the spatial strategy of the draft plan was based upon firstly
the objective of retaining the “village feel” of Sayers Common and secondly the
infrastructure constraints affecting the village (see paragraph 35 above). The
Secretary of State’s decision letter did not suggest that those issues should be left to
the examination of the draft plan. Instead, in determining the Claimant’s planning
appeal, he reached his own conclusions on those matters, in agreement with the
Inspector’s views. Thus, the Secretary of State agreed with the Claimant (and thereby
disagreed with the Parish Council) that the scale and density of the proposal was
appropriate for the village, there would be no adverse effect on the character of the
area and any infrastructure constraints would be overcome by the appeal proposal
(paragraphs 50 to 54 above). The Secretary of State in substance rejected the Parish
Council’s representation that development of 120 houses in Sayers Common,
exceeding the draft proposal for 30 - 40 dwellings, would cause harm to the character
of the village (cf. paragraphs 48 to 49 above). The effect of the Secretary of State’s
clear conclusions on the merits of the proposal was to negate the rationale for draft
policy H4.
124.
Furthermore, when the Secretary of State issued his decision on 4 September 2014,
the examination of the draft plan had yet to be concluded. If it were correct to assume
that the examination would consider the merits of releasing the appeal site for
housing, he ought to have appreciated that his own clear conclusions on the
acceptability of the appeal proposal in terms of its effect on the village and the
overcoming of infrastructure constraints would be highly material considerations,
applying the well-known “consistency principle” in North Wiltshire District Council v
Secretary of State (1993) 65 P&CR 137 and other related authorities. Under the
neighbourhood plan system which he created, and also on the material before him, the
Secretary of State had no reason to think that the examination of the draft plan would
not be concluded in the near future. Unsurprisingly, the Secretary of State did not
suggest in his decision letter that the appeal should be dismissed on prematurity
grounds so that his conclusions as to why the development of the site for 120 houses
was appropriate for Sayers Common, could be revisited so soon in the examination of
the draft plan, and with any realistic prospect of different conclusions being reached
by the Examiner.
125.
A proper understanding of the decision letter cannot be divorced from the realities
facing the Secretary of State, in particular the basis for draft policy H4 in the
neighbourhood plan and the Secretary of State’s own views upon the very same
matters. When those points are brought back into focus, it becomes clear that the
Secretary of State did not apply himself to the key tests in the PPG on prematurity as
to whether particular issues should be determined in the examination of a
neighbourhood plan rather than in the decision on a planning appeal. The relevant
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issues were determined by the Secretary of State in the planning appeal in any event.
The suggestion of prematurity in DL 19 was devoid of any content.
126.
There is a further difficulty with Mr. Honey’s numerical argument (paragraph 120
above). True enough policy H4 identified only 30-40 dwellings as being appropriate
for Sayers Common, whereas the appeal proposal was for 120 dwellings. But, the
Secretary of State should have appreciated from the BDW case (as well as from the
Claimant’s post-inquiry representations) that policy H4 would not satisfy the
requirement in the “basic condition” to have regard to the NPPF, and in particular the
need for “flexibility” and “to plan positively for growth”, unless it was amended so as
to remove the cap limiting new housing in the village to 30 - 40 dwellings (see
paragraphs 47 and 61 above).
127.
This point has all the more force in the present case because of the absence of an upto-date objective assessment of housing need. The Secretary of State referred in
DL16 to the lack of any such analysis against which to measure the proposals in the
draft neighbourhood plan. But as I have already held, the Defendant erred in law by
relying upon that matter as a factor lending support to those draft policies (paragraph
81 above) and by failing instead to deal with the Claimant’s contention that any cap
should be removed for the very same reason (paragraphs 47 and 83 above).2
128.
For all these reasons I uphold ground 2 as a separate basis for quashing the decision
letter. Applying the test in Simplex G.E. (Holdings) Limited v Secretary of State for
the Environment (1987) 57 P & CR 306, I do not accept that the Secretary of State’s
decision would necessarily have been the same if the error under ground 2 had not
been made. First, conflict with the draft neighbourhood plan was identified in the
decision letter as a reason for refusal of permission. The appeal was dismissed for
that reason in combination with prematurity. Second, prematurity formed a
substantial part of the reasoning for dismissal of the appeal and, on the material before
the Secretary of State, I can see no basis upon which the Court could infer that the
appeal would necessarily have been dismissed on that ground if the decision had not
been flawed by the errors identified above.
129.
The reasons I have already given are sufficient to vitiate the Defendant’s decision to
dismiss the appeal by reference to prematurity. But the arguments in this case have
revealed a troubling failure by the Defendant to appreciate the limited scope of the
examination of a neighbourhood plan and the implications this undoubtedly has for
reliance upon prematurity in relation to that process as a reason for refusing planning
permission. The conclusions I set out below reflect the decisions of the High Court in
BDW and Gladman.
130.
As I have mentioned, the judgment in BDW was given well before the Defendant’s
decision on the present appeal. The decision in Gladman was handed down on 18
2
Although not strictly relevant to the legal soundness of the Defendant’s decision letter, the Examiner
subsequently reported that in order to accord with the NPPF, H4 would have to be amended by
removing the cap on the number of units to be built in Sayers Common and the plan was formally
approved with that amendment.
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December 2014, but the principles set out by Lewis J in his judgment were based
directly upon the statutory scheme for neighbourhood planning promoted by the
Secretary of State.
131.
Although a neighbourhood plan must be in general conformity with the strategic
policies of the local plan and should not provide for less development than is
promoted by the local plan (paragraph 184 of the NPPF), these principles do not apply
where a neighbourhood plan is progressed in advance of the adoption of any local
plan. The absence of a local plan does not preclude the preparation and formal
approval of a neighbourhood plan. The body responsible for a neighbourhood plan
does not have the function of preparing strategic policies to meet assessed housing
needs (paragraph 63 above).
132.
Apart from any issues as to compatibility with convention rights, the examination of a
draft neighbourhood plan may only consider whether the “basic conditions” are met
(paragraph 56 above). The basic conditions do not include the issue of whether the
plan is “sound” in the sense in which that term is used when dealing with
development plan documents (sections 20 (5)(b) of the 2004 Act and paragraph 182
of the NPPF). Therefore, where a neighbourhood plan precedes a local plan, the
effect of paragraph 8 of Schedule 4B of the 1990 Act is that the examination of a
neighbourhood plan cannot consider whether it is based upon a strategy to meet
objectively assessed housing needs. Nor can the examination consider whether the
proposed strategy is the most appropriate or justified by a proportionate evidence base
(paragraphs 57, 62 and 63 above).
133.
The Secretary of State’s PPG also explains how the examination of a neighbourhood
plan is very different from that of a local plan. The Examiner is limited to testing
whether the neighbourhood plan meets the “basic conditions” and “is not testing the
soundness of a neighbourhood plan or examining other material considerations”
(paragraph 055 with emphasis added). Although the Examiner has a discretion as to
whether to conduct the examination by way of a public hearing, paragraphs 056 of the
PPG “expects” that the examination will proceed by considering written
representations and not a hearing. The statutory scheme for the preparation of
neighbourhood plans has been designed so as to make the evidential and procedural
requirements, and the intensity of independent examination, less onerous for the
promoting body than in the case of a local plan.
134.
As in Veolia ES (UK) Ltd v Secretary of State for Communities and Local
Government [2015] EWHC 91 (Admin) at paragraph 49,
“I respectfully agree with the approach taken by Frances
Patterson QC (as she then was) in paragraph 64 of the judgment
in Truro City Council v Cornwall City Council [2013] EWHC
2525 (Admin):
“It is quite impossible to divorce the issue of prematurity
from the local plan process: after all, the impugned decision
is premature to what? The essence of a successful claim of
prematurity is that the development proposed predetermines
and pre-empts a decision which ought to be taken in the
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Development Plan process by reason of its scale, location
and/or nature or that there is a real risk that it might do so.””
The suggestion that an issue ought to be determined in the examination of a draft
neighbourhood plan rather than in a planning appeal assumes that that issue will fall
within the remit of that examination. If that assumption is incorrect, then prematurity
does not arise.
135.
In the present case the Secretary of State did not give any consideration to that
essential question. In DL16 he noted that the District Council had not carried out an
up to date objective assessment of housing need against which to test the proposals in
the draft neighbourhood plan. There was no evidence before the Secretary of State as
to when that work would be done. There was no suggestion that it would be carried
out by the District Council before the examination of the neighbourhood plan. There
is no requirement for such an assessment to be in place before a neighbourhood plan
may be prepared and approved. Where no such assessment exists, there is no
requirement for the body preparing the neighbourhood plan to undertake that work
and its absence does not go to the issue of whether the statutory “basic conditions”
have been met. Moreover, the examination does not consider whether the policies of
a plan are “justified” by a proportionate evidence base (the “soundness” test).
However, in DL19 the Secretary of State assumed that the remaining stages of the
neighbourhood plan “may show that more land needs to be allocated”. But given the
absence of any proper need assessment by the District Council and the limited
statutory ambit of the process for the preparation and examination of a neighbourhood
plan, the Secretary of State has made an assumption which was essential to the
dismissal of the appeal but which was not based upon any evidential or legal
justification. For these additional reasons under ground 2 the Secretary of State’s
decision must be quashed.
136.
The approach subsequently taken in the Examiner’s report issued on 23 September
2014 was consistent with the limitations upon the process for preparing and
examining neighbourhood plans. In summary the Examiner concluded:(i)
The plan had taken into account “consultation” on housing matters,
demographic changes and household formation rates and allowed for
economic growth generated by demands outside the plan area. The plan
“recognises that, in order to meet future demands, housing numbers are likely
to be at the higher end of an identified range – towards 395 new homes” (page
23);
(ii)
Whilst seeking to safeguard the area’s “village feel”, “nowhere in the
Neighbourhood Plan is there an absolute limit or a maximum cap on the
number of houses to be built over the plan period”, i.e. for the plan area as a
whole (page 23);
(iii)
The plan recognises the inevitability of greenfield release for the delivery of
housing (page 23);
(iv)
The plan’s “proactive approach” in “facilitating a sustainable level of growth
within the Parish” [but, I interpolate, without any specific conclusion in
relation to Sayers Common] had been criticised for providing too much
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development, but on the other hand it had been supported in the majority of
representations (page 24);
137.
(v)
As to representations on “the subject of housing numbers and the absence of
up to date strategic policy in this regard”, “it is firmly established within
national policy that a neighbourhood plan can be made whether or not districtwide housing policies are up to date” (page 24).
(vi)
As to representations that policy H3 should allow further sites to be promoted
and provide greater flexibility, the Examiner responded that the policy “simply
provides for specific allocations, rather than precludes all other development
from taking place” (page 26 with emphasis added);
(vii)
However, the Examiner recommended that in order to accord with the
requirements in the NPPF to promote sustainable growth combined with a
flexible approach, the “maximum number” in H4 of 30 - 40 homes for Sayers
Common should be removed and replaced with the words “it is anticipated that
the village will accommodate around 30 - 40 dwellings during the plan period”
(page 26).
The Secretary of State did not suggest in his submissions to the Court that the
Examiner’s Report had dealt inadequately with the objections made to the draft plan.
Instead, the level of scrutiny of the plan in response to these objections, which
scrutiny might be described as somewhat superficial, apparently accords with the
statutory scheme and policies governing neighbourhood planning. What is not to be
found in the Examiner’s Report is any finding as to whether more housing land
needed to be allocated in Sayers Common, and in any event whether 120 houses could
be accommodated there without any detriment. If, however, upon reflection it is
thought by the Secretary of State that issues of this kind ought to be dealt with in the
examination of a neighbourhood plan to the level of scrutiny that could properly
found a prematurity objection in a planning appeal (see paragraph 134 above), then
consideration needs to be given to amending the NPPF and PPG (and possibly the
legislation) so as to extend the ambit of the process for preparing and examining
neighbourhood plans.
Ground 1
138.
The Claimant submits that the Secretary of State failed to take into account and apply
his own policy in relation to the weight to be given to an emerging plan contained in
paragraph 216 of the NPPF. The reasoning in the decision letter on the weight to be
given to the draft neighbourhood plan only applied the first criterion in paragraph 216,
namely the stage which the plan had reached in the process leading towards its final
approval (see paragraph 25 above). The decision letter did not deal with the second
and third criteria of that policy, namely the extent to which there are unresolved
objections to relevant policies in the draft plan (and the significance of those
objections) and the degree of consistency of the policies with the NPPF. It is
submitted that the Secretary of State failed to have regard to the second and third
criteria, alternatively, if he did, he failed to give any reasons in relation thereto.
139.
The Claimant also submits that the second and third criteria were particularly
pertinent in the present case because (a) the draft neighbourhood plan was proceeding
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in advance of an up to date local plan to establish objectively assessed housing needs
and strategic housing policies and (b) the draft plan had yet to be examined. This is to
be contrasted with, for example, a situation where the report into the examination of a
draft plan has been published and it may then be possible to attach significant weight
to a draft policy simply because of the very advanced stage which the plan has
reached.
140.
The Secretary of State submitted that it was not necessary for a decision-maker to
recite and apply each of the three criteria in paragraph 216 of the NPPF because they
were simply factors to be taken into account in judging the weight to be attached to a
draft plan rather than free-standing tests. The three criteria were not “principal
important controversial issues” in their own right attracting an obligation to give
reasons. It was also submitted that it could not be inferred from the absence in the
decision letter of any finding under the second and third criteria that they had not been
taken into account, citing the speech of Lord Lloyd of Berwick in Bolton MDC v
Secretary of State for the Environment (1995) 71 P & CR 309, 314 - 5.
141.
In my judgment, the policy in paragraph 216 of the NPPF should be read as a whole.
It is not a policy which simply makes the trite point that decision-makers may give
weight to relevant policies in emerging plans. Rather it is a policy that they may do
so “according to” the three criteria or factors which follow. The policy clearly
stipulates that the three criteria are relevant in each case. Of course, when dealing
with a particular planning proposal it may be the case that the relevant policies in a
draft plan have not attracted any objections and so it would not be necessary to
consider the second criterion beyond that initial stage. But plainly the second criterion
is material in each case in order to ascertain whether a relevant draft policy has
attracted any objections and if so, their nature, before going on to make an assessment
of the significance of any such objections.
142.
When applying paragraph 216, an Inspector or the Secretary of State determining a
planning appeal is largely dependant upon the information provided by the parties on
the application of the three criteria. By contrast, where a decision is being taken by a
local planning authority which is also responsible for the draft plan in question, that
authority is unlikely to be dependant upon others to provide the information needed to
apply the three criteria. It has ready access to that information itself.
143.
In my judgment it is plain that in this case substantial information was placed before
the Secretary of State which resulted in the application of the second and third criteria
becoming “principal important controversial issues” for the Secretary of State to
grapple with and determine (see paragraphs 45, 47 and 48 above). For example, the
Parish Council submitted to the Defendant that the appeal should be dismissed
because it proposed substantially more than the 30 - 40 houses and therefore
conflicted with policies C1, H1 and H4 of the draft plan. But the Claimant submitted
that H4 was in conflict with the NPPF because it imposed a cap on the scale of new
housing in Sayers Common and did not provide the “flexibility” required by national
policy.
144.
It follows that if the Secretary of State had applied the second and third criteria in
paragraph 216 of the NPPF, he was obliged to give reasons explaining how he had
done so and resolved important planning issues raised by the parties. He did not give
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any such reasoning in the decision letter. That is a sufficient basis upon which to
uphold ground 1.
145.
However, in my judgment the legal error goes further. The decision letter reveals that
the Secretary of State did not apply the second and third criteria at all. In DL19 he
stated that the issue of whether more land needed to be “allocated” at Sayers Common
should not be “prejudged”, but should instead be left to the examination of the draft
plan. The clear implication was that the Defendant considered that the appeal site
should not be released for housing development unless and until the figures setting the
cap for Sayers Common in policy H4 are increased. Thus, the Secretary of State did
not assess whether the inclusion of any cap in draft policy H4 accorded with the
NPPF, nor the strength of the objections made to the plan, particularly that policy,
(taking into account paragraphs 33 and 81 of BDW and Reports into the Examination
of Neighbourhood Plans cited by the Claimant). The criticism in paragraph 83 above
also applies under ground 1.
146.
Mr. Honey submitted that even if the second and third criteria in paragraph 216 of the
NPPF had been addressed, the decision on the weight to be given to the draft plan
would have remained unchanged and the decision would necessarily have been the
same, at least in that respect. I am quite unable to accept that submission. For the
reasons I have given it cannot be inferred that if, for example, the Secretary of State
had addressed the objections to “the cap”, he would necessarily have attached the
same weight to the draft plan, in particular H4. Indeed, if he had given little weight to
the “cap”, he might well have treated his acceptance of the strong merits of the
proposal as decisive.
Conclusion
147.
For all the reasons given above, I uphold each of grounds 1, 2, 3 and 4 as freestanding
reasons for quashing the decision dated 4 September 2014.
40